AND IN THE MATTER OF AN APPEAL OF

STANDARDBRED LICENSEE PATRICK ROULEAU

On September 22, 2008, the Judges at Grand River Raceway issued Standardbred Official Ruling SB 39312 to Patrick Rouleau (“ROULEAU”) with a penalty of $300 because he “did use his whip in an indiscriminate manner during the stretch drive by placing it between the horse’s back legs”, contrary to Rule 22.22 of the Rules of Standardbred Racing.

On September 30, 2008, ROULEAU appealed Standardbred Official Ruling SB 39312.

On October 3, 2008, Ruling Number S.B. 149/2008 was issued wherein ROULEAU was granted a stay of his penalty until such time as his appeal is heard.

On January 13, 2009, the Ontario Racing Industry Board of Appeal convened for the purposes of hearing ROULEAU’S appeal. The Board of Appeal denied ROULEAU’S appeal.

On January 16, 2009, Standardbred Official Ruling SB 39264 was issued to ROULEAU to reinstate Standardbred Official Ruling SB 39312 as a consequence of the Ontario Racing Industry Board of Appeal dismissing his appeal.

On January 20, 2009, ROULEAU appealed to a Panel of the Ontario Racing Commission (“ORC”).

On January 28, 2009, Ruling Number S.B. 11/2009 was issued wherein ROULEAU was granted a stay of his penalty pending the outcome of his appeal.

On May 13, 2009, a Panel of the ORC, comprised of Chair Rod Seiling, Commissioner David Gorman and Commissioner Brenda Walker, was convened to hear the appeal.

Jennifer Friedman appeared as counsel for the Administration. ROULEAU was in attendance with Michael Sinclair acting as his representative.

Upon considering the Agreed Statement of Facts, hearing the testimony of Judge Rick Rier and ROULEAU, reviewing the exhibits filed, and upon hearing the closing submissions, the Panel denied the appeal as follows:

i) fine of $300 for violating SB Rule No. 22.22 is to be reinstated; and

ii) fined an additional $100 for a frivolous appeal.

The Panel’s Reasons for Decision is attached to this Ruling.

Rob McKinney

Acting Executive Director

REASONS FOR DECISION

Overview

Ontario Racing Commission (ORC) licensee, Patrick Rouleau, appealed the decision of the Industry Appeal Board (Ex. 1, tab 12) wherein the Board denied his appeal with respect to a decision of the ORC Judges at Grand River Raceway, (Ex. 1, tab 2) for a violation of SB Rule No. 22.22.

Background

An agreed statement of facts was reached between the Commission’s legal counsel, Jennifer Friedman, and the appellant’s representative, Michael Sinclair, prior to the commencement of the hearing and presented to the Panel.
Those facts appear in the Administration’s factum (Ex. 2, p 2 & 3) and were read into the record. They read as follows:

Patrick D. Rouleau (ROULEAU) is licensed with the Ontario Racing Commission (“ORC”) as a Driver/Trainer.
On September 22, 2008, ROULEAU participated in the 7th race at Grand River Raceway driving the horse, Jessica Palace.
On September 22, 2008, the Judges at Grand River Raceway issued Standardbred Official Ruling SB 39312 to ROULEAU with a penalty of $300 because he “did use the whip in an indiscriminate manner during the stretch drive by placing it between the horse’s back legs”, contrary to Rule 22.22 of the Rules of Standardbred Racing (“the Rules”).
This was Rouleau’s second offence within one year. On December 12, 2007, ROULEAU was fined $100 for excessive use of the whip during the 5th race at Flamboro Downs on December 2, 2007, on the horse, Jessica Palace.
On September 22, 2008, ROULEAU advised the Judges that he wished to review the film on September 26, 2008.
On September 26, 2008, the Judges held a Hearing and Videotape Review. The Judges concluded that Rule 22.22 of the Rules, namely brutal, excessive or indiscriminate use of the whip encompassed ROULEAU’S conduct. ROULEAU acknowledged to the Judges that the whip was between the horse’s back legs. However, ROULEAU maintained that it should not be treated as a second offence as his prior penalty was for excessive use of the whip. ROULEAU verbally advised of his intent to appeal.
On September 30, 2008, ROULEAU filed his Notice of Appeal on the following grounds: “innocent - not guilty of infraction.”
On October 3, 2008, Ruling Number S.B. 149/2008 was issued wherein ROULEAU was granted a stay of his penalty until such time as his appeal is heard.
On December 9, 2008, The Ontario Racing Industry Board of Appeal (“Board of Appeal”) issued a Notice of Hearing to ROULEAU to advise that it would be convening for the purposes of hearing his appeal on January 13, 2009.
On January 13, 2009, the Board of Appeal heard ROULEAU’S appeal.
On January 13, 2009, the Board of Appeal issued a Ruling denying ROULEAU’S appeal for the following reasons:

“The Board finds that applying the whip between the legs is viewed as indiscriminate and a violation of ORC Rule 22.22. The Industry is supportive of stronger regulation of whip use and being unaware of the issues is not accepted as a defence. The Judges have reviewed the issue of whip abuse many times with drivers at various tracks.”

On January 16, 2009, Standardbred Official Ruling SB 39264 was issued to ROULEAU to reinstate Standardbred Official Ruling SB 39312 as a consequence of the Board of Appeal denying his appeal.
On January 20, 2009, ROULEAU filed his Notice of Appeal to the Panel of the ORC on the following grounds: “Re loss of appeal SB 39312 Track Gr Rvr Sept. 22' 08".
On January 28, 2009, Ruling Number SB 11/2009 was issued wherein ROULEAU was granted a stay of his penalty pending the outcome of his appeal.
On March 25, 2009, a Notice of Hearing was issued to advise that a Panel of the ORC would convene on May 13, 2009, for ROULEAU’S appeal.

In addition to Mr. Rouleau continuing to offer the same opinion that his second offence was different from his first, indiscriminate versus excessive, he opined that it was unfair to him to be charged by the Judges when others who offend in a like manner are not charged. He also claimed that he was aware that the ORC was cracking down on whipping violations but that he was unaware that it included putting a whip between a horse’s rear legs and therefore he should not be penalized.
The appellant was of the opinion that there is nothing wrong with putting a whip between a horse’s rear legs. It was not his intent to hurt the horse and thus okay in his view. In this regard, Mr. Sinclair stated that Mr. Rouleau’s actions should not be viewed in a like manner as Trevor Henry who cut a horse with a whip and was disciplined by the ORC for his actions.
It was pointed out to the appellant that Rule 22.22 reads “Brutal or excessive or indiscriminate use of the whip.” is not three separate rules but reads as one.”
With respect to the penalty aspect of the Rule, ORC Senior Judge Rick Rier, testified that as a matter of practice, Judges utilize the penalty provisions contained in SB Rule No. 22.23.01, that is, $100 for the first offence within a year, $300 for a second offence and $500 for a third offence. With the violation of September 22, 2008 occurring within approximately nine months of the December 2007 offence, the $300 penalty was applicable.

Issue

Is there any merit in the appellant’s appeal? Should the Panel assess the appellant an additional penalty as requested by Ms. Friedman under the frivolous appeal provisos contained in Subsection 11 (8) of the Racing Commission Act and Section 1 of the Ontario Regulations?

Decision

After carefully considering the testimony and reviewing the evidence and the submissions, the Panel denies the appeal of Mr. Rouleau. His fine of $300 for violating SB Rule No. 22.22 is to be reinstated and he is fined an additional $100 for a frivolous appeal.

Reasons for Decision

Mr. Rouleau admitted to a violation of SB Rule No. 22.22. It is somewhat incredulous to believe that a person would try and argue that the words within a rule, excessive and indiscriminate, when it comes to the penalty provision should be treated as separate and distinct rules. If the intent was to have them interpreted as such, on a balance of probabilities, they would have been written separately.
Mr. Rouleau, while he admitted to being aware of ninety percent of the whipping rules, claimed that he was unaware of the provisions related to putting a whip between a horse’s back legs as the enforcement of this was tied to paddock meetings conducted by the Judges which he was unaware of their happening. Ignorance of the rules, SB Rule No. 1.04, is not an acceptable defence. The Panel notes that SB Rule No. 22.23.01 (b) allows whipping provided that “the whip strikes the horse between, inside and above the level of the shafts of the sulky only.” Placing a whip between a horse’s rear legs, by definition, would be a violation of this rule as well, of which Mr. Rouleau should have been aware as a licensee.
Claiming other licensees have not been charged for a similar offence is akin to claiming one should not be charged for exceeding the speed limit because the police did not catch others who were also breaking the law. Judge Rier admitted that not every rule infraction in this regard is caught but that the Judges do the best they can and are trying new ways to improve their abilities to catch offenders.
The Panel, as does the Commission, respects and defends every licensee’s right to due process and by extension, the right to appeal. With that right comes a responsibility not to abuse the system.
The ORC funding is sourced from the industry. The Commission recognizes that it has a responsibility to use that funding judiciously in its role as regulator of the industry.
Mr. Rouleau’s appearance before the Panel marked his third effort to have a penalty rescinded or reduced for a rule violation that he admitted to committing. That in itself does not make for a frivolous appeal. The frivolity comes into play when one’s only defence is ignorance of the rules, a claim that he has been treated unfairly because other offenders have not been caught, and that because his one whipping offence was for excessive use and this one was for indiscriminate use, and therefore the penalty provision should be different notwithstanding he was found guilty of violating the same rule in both instances.
The Panel is extremely disappointed that Mr. Rouleau sees nothing wrong with putting a whip between a horse’s back legs. This is, perhaps, the most sensitive area on a horse’s body and clearly via Rule 22.23 the Commission rules are very specific where whipping is not allowed for extremely valid reasons. What is disturbing is the ongoing laissez-faire view by some in the industry as to what is acceptable as it relates to whipping. Times have changed; the majority in the industry has recognized this and is working in a consultative manner with the Commission to bring in a new, progressive regimen as it relates to the whipping of horses. Horse racing can and does have sustainable future but only if it adapts to the realties of what the public is prepared to accept and support. In this regard, their verdict is in, they demand and expect the humane treatment of the industry’s athletes, which by definition, includes the horse. The Commission has long been on record that one of its key mandates is to protect the health and welfare of the horse and will not look kindly on any offender.

DATED this 22nd day of May 2009.

Rod Seiling

Chair

Patrick Rouleau v. Ontario Racing Commission, 2009 CanLII 91191

Case Summary